Posted on 02/02/2006 3:13:39 PM PST by Aussie Dasher
With three federal appellate courts now ruling the Partial Birth Abortion Ban Act of 2004 unconstitutional, the issue likely will be decided by the newly configured Supreme Court, with two conservative justices recently appointed by President Bush.
Jordan Lorence, an attorney with the public-interest legal group Alliance Defense Fund, told WND he believes it's probable that one of the three cases will be heard by the high court his fall, with a decision coming in June 2007. A ruling last year by the 8th Circuit already has been appealed.
On Tuesday, the 9th Circuit Court in San Francisco and the 2nd Circuit Court in Manhattan both ruled against the law signed by President Bush, saying it lacks an exception for when a woman's health is in danger.
"We are reluctant to invalidate an entire statute," 9th U.S. Circuit Court of Appeals Judge Stephen Reinhardt wrote. "However, after considering all of the obstacles to our devising a narrower remedy, we conclude that such is our obligation."
In the 2nd Circuit ruling, however, there was a strong dissent by Judge Chester J. Straub, who asserted Congress' determination that the procedure is never medically necessary to protect a women's health is well founded.
"Allowing a physician to destroy a child as long as one toe remains within the mother would place society on the path towards condoning infanticide," he said.
"I find the current expansion of the right to terminate a pregnancy to cover a child in the process of being born morally, ethically and legally unacceptable," Straub contended.
Attorneys for Planned Parenthood, which brought the lawsuit decided by the 9th Circuit, applauded the ruling.
"Even though the supporters of this law purported to be banning one particular abortion procedure, the law as the court found would in fact chill doctors from performing virtually any second trimester abortion," said Eve Gartner, senior staff attorney.
The pro-life group Operation Rescue called the rulings "nonsensical."
"On one had we have courts that convict people like Scott Peterson for double homicide when it involves the death of a pregnant woman and her pre-born baby," said Operation Rescue President Troy Newman. "Then on the other hand, we have courts that determine that the 'gruesome, brutal, barbaric and uncivilized' partial-birth abortion is a Constitutional right."
Newman said the cases should go to the Supreme Court, where there would be "a golden opportunity for (Justices John ) Roberts and (Samuel) Alito to put their conservative judicial philosophies to good use."
During their confirmation hearings, neither of the new justices revealed how they would rule on abortion cases, arguing, as have others, that commenting on an issue that likely will come before the court would be inappropriate.
Last July, a three-judge panel of the U.S. Court of Appeals for the 8th Circuit in St. Louis agreed with a federal district court judge in Nebraska that the ban is unconstitutional.
After that ruling, pro-life advocates said the court exhibited a "failure to understand the barbarity of the procedure."
"This court apparently would have us believe that there is a constitutional right to crush the skull of a baby that is halfway out of the mother's body," said Gary McCaleb, senior counsel for the Alliance Defense Fund. "Americans overwhelmingly reject this barbaric procedure, and it is their will, not the will of the courts, that will win in the end."
McCaleb argued that health exceptions are not well defined, meaning almost anything can become an exception.
"Including such an exception would render the ban nearly useless," he said. "Moreover, Congress found that the evidence clearly demonstrates that no such exception would ever be needed."
The Partial Birth Abortion Ban Act of 2003 says: "A partial-birth abortion is never necessary to preserve the health of a woman, poses serious risks to a woman's health, and lies outside the standard of medical care. There is no credible medical evidence that partial-birth abortions are safe or are safer than other abortion procedures."
News of the relevent section would be most helpful!
LOL! Yeah, right.
But we will be more than happy to create some "rights" out of thin air. No problem!!! Kill innocent unborns? Check. Save guilty murderers? Check. Gay weddings? Step right up. Whatever you like... just check your logic at the door.
One would hope that the SCOTUS would act with some urgency considering the number of partial birth abortions that will be performed between now and June 2007. If they write an opinion using the words that Judge Straub used, how could they possibly justify allowing even more babies to be subject to the brutal act of being almost born and then brutally killed?
The mother should have to watch the procedure in full living color, and also have to stab the baby's head with the scissors herself.
Well, it does not prevent it either. But that's not the point. The US Constitution also does not empower the Congress to pass laws regulating abortions. This law was (that's my guess) passed as a regulation of "commerce among the several states" (and IMHO partial-birth abortions do not constitute "commerce among the several states") and should therefore be invalidated (although not for the reasons presented by NARAL and other abortion lovers).
But really the point of the law is a platform to overturn Stenberg v Carhart and allow states to make their own laws regulating abortion.
Conception, First Trimester, Second, Third, Partial birth...Well why stop there... couple days old.. months... Oh hell couple years old ...
Murder is murder plain and simple...It is not your life to take it belongs to God.
If this were to happen, I suppose murder is legal. Does it mean I can take a sledgehammer to al franken?
Of course. They definitely have plenary legislative power over D.C. etc. But that was not the point of my post.
A woman traveling from one state to another to purchase the services of a Partial Birth Abortionist is arguably interstate commerce constitutionally and unquestionably interstate commerce under SCOTUS' unconstitutional law making power.
I agree that the Congress could probably ban traveling between the states in order to "purchase" PBA's but it doesn't mean that it can ban the procedure itself. Of course the current interpretation of the Commerce Clause is that the Congress can regulate practically anything but that's why the SCOTUS should review its interpretation of the CC (like Justice Thomas proposed in Lopez and later in Morrison). Abortion clearly should be resolved by the states. Using the Commerce Clause in order to deal with it on a federal level is simply against the constitution. Of course the SCOTUS would first have to overrule Wickard and that would make liberal heads explode...
But really the point of the law is a platform to overturn Stenberg v Carhart and allow states to make their own laws regulating abortion.
I agree that the states should be able to make their own laws. The point of my post was that this law should be declared unconstitutional because the Commerce Clause does not empower the Congress to regulate partial-birth abortions throughout the country (or any abortions for that matter).
I understand your point. I also read the law, you're point is wrong. The law is narrow, only effecting interstate commerce and federal territories. That's what the law says.
OK I didn't read the law so I just assumed (from what I read on the net) that it was meant to ban partial-birth abortions throughout the country. If it is narrow, that is only affects territories under federal jurisdiction and prohibits interstate travels to obtain abortions then it should be upheld. Thanks for the info.
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(a) Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both. This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself. This subsection takes effect 1 day after the date of enactment of this chapter.
What ever happened to the physicians credo, the first point of which says:
"First, do no harm."
Just a thought.
Only if you first stick his head up ..... first.
What is it with these judges that they don't understand medical authority which states that there is no health reason or any known disease to justify a partial birth abortion?
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